Window and Door Dealers Group Attacks EPA’s Lead Rule

By Craig Webb

A recently formed trade group for window and door dealers has launched its own effort to battle part of the Environmental Protection Agency’s proposed standards for working in homes with lead-based paint. Meanwhile, a former remodeler who now leads training programs said compliance in the rule isn’t as expensive as some think, but failure to abide by it could carry worse consequences than have been suggested.

The Window & Door Dealers Alliance (WDDA) is taking aim at a proposed change to a section of the EPA’s Lead Renovation, Repair, and Painting (RRP) rule dealing with the tests required to assure that a renovation project did not leave unacceptable levels of lead dust on the jobsite. The proposed rule change, issued May 6 with comments due by July 6, in particular would require personnel to use wipes to collect dust samples from a completed site, get those dust wipes tested for lead content, and then report the results to the owners and occupants of the building being renoved. The current rule is a form of the “white glove test” in which testers visually compare the dust they had just wiped with a card showing what an unacceptable amount of lead dust would look like.

Instances where dust-wipe tests would be required include jobs involving demolition or removal of plaster or removal of paint by power sanders or blasters. Places where the tests have to be made include floors, windowsills, and window troughs. In some cases, the effort involved in cleaning up the site post-renovation and then testing to assure it’s safe–collectively known as the “clearance event”–would have to be performed by a third-party company.

WDDA didn’t like what it read. Among other things, it noted the EPA estimated it would cost over $250 for a renovation firm to hire a third-party lead evaluation firm to take four dust samples, send them to a lab for analysis, and provide a short report. (EPA said many renovation firms may find it more cost-effective to train and certfiy a staff member as a dust sampling technician.) The collection of the dust samples must be done by a certified dust sampling technician and/or certified risk assessor, WDDA says.

“In a time when the construction industry is struggling to emerge from recession, and when the administration is providing subsidies for weatherization of homes to save energy and create jobs, the EPA rule threatens to destroy thousands of jobs,” declared a statement of principles issued June 10 by the WDDA, which was created and is managed by the National Glass Association. Likewise, in a WDDA-written draft letter to the EPA, dealers are urged to tell EPA that “it is a virtual certainty that imposing additional requirments on top of those that took effect in April will cause substantial harm to the vast majority of window and door dealers.”

WDDA urged EPA to either eliminate the clearance testing program altogether or defer implementing it until enough data can be collected to determine whether the rules are cost effective. (In fact, the EPA included a cost-benefit analysis in its proposed rule and said it gave extensive consideration to the cost of testing dust wipes.) “All we are asking is that the EPA allow our industry some much-needed breathing room to ensure that the increased regulatory burden does not put us out of business,” the draft letter requests.

EPA estimates the changes to its lead-paint rule will affect 1.2 million to 1.8 million instances where the dust-wipe test is required and 59,000 to 69,000 “clearance event” cases in which outsiders must be brought in. All told, roughly 18.7 million renovation events per year are covered by RRP, the agency said. The rule applies to homes and other buildings constructed prior to 1978, the year lead-based paint was outlawed in the United Sates.

While they’re careful to agree there are health dangers caused by dust from lead-based paint, RRP’s detractors cite both cost and competition as reasons to modify the rule. Various experts had predicted RRP will increase remodeling costs by 5% to 15% even before the EPA proposed new clearance tests. WDDA, in its statement of principles, argued that such a cost increase, combined with the rule’s complexity, “can only encourage homeowners to contract with renovators that either are unaware of the rules or choose to ignore them.”

But Todd Russell, lead training coordinator for Wisdom & Associates, a compliance training firm based in Kenai, Alaska, contested that argument.

“I see this program as a little bit of equipment up front, training your employees–time which can be spent on the job site–and some perishables,” Russell told ProSales in a June 11 interview. “There are some things you’ll have to buy, but for the most part a good, conscientious clean contractor is not going to be waylaid by this program.

“I liken this to places where you’re doing drywall demolition,” continued Russell, who first became acquainted with lead-paint issues years ago while working as a contractor in New England and, later in life, spent 13 years building homes in Alaska. “You don’t want to clean up a house full of drywall dust. You can’t afford to have a cleaning service come in and clean up or pay for the damage that drywall cost.”

As for suggestions that RRP will push up the cost of some renovations jobs by as much as 20%, Russell replied: “I really don’t see it. … You may go into a pre-’78 home, test, and never find lead. In that case you do a standard job and just keep the records on-site”

Russell also took the flip-side view of critics who believe RRP will push business toward contractors who will put in lower bids for jobs because they intend to ignore the rule.

“[RRP] is hopefully going to give some teeth to good contractors who’ve been underbid by bad contractors who’ve been hurt by people with poor ethics,” he said. “I want to see good, hardworking contractors–contractors with a clean business that want to be contractors because of the love of the work–keep their business afloat.”

Russell was certified in February as a trainer in lead-safe practices. He has conducted three classes on his own and oversees an operation that has certified roughly 500 contractors to date. To date, Wisdom and Associates has operated in Alaska alone, but it is expanding into Virginia and other states this summer.

Much has been made by contractors that failure to abide by the rule could lead to an EPA fine of $32,500 per instance plus another potential $32,500 fine if the agency finds continued examples of a contractor’s negligence regarding the rule. While decrying the fines as substantial, critics also have argued that the EPA lacks the infrastructure to find violators. Russell sees things differently

“They all say ‘How can the EPA monitor a program that’s this immense?'” Russell says. “They won’t have to. As asbestos has shown, the lawyers will take care of monitoring this program. The EPA doesn’t have to do atg that the lawyers won’t take care from in massive lawsuits.”

Equally significant, Russell says he has yet to find a statute of limitations in the regulation, thus raising the possibility that a contractor who ignores the rule now could get whacked years from now if lead dust in the house causes harm.

And even if the lawyers don’t get active, it will be easier for the EPA to keep an eye on dealers than some people think, Russell said.

“We had a general contractor come in who was taking another [compliance] class from us,” Russell said. “He said the lead thing was stupid, they can’t monitor us, I’m not going to take this. The next day, he came in with a letter from the EPA that said on such-and-such a date we know from the city of Anchorage that you’ll be doing a renovation and we’ll be coming by to see if you’re working within the boundaries of the program. They’ll be able to look through the permits to see whether it’s likely you’re doing work.”

“I had a guy who fought me tooth and nail on this and said he’s not going to do renovations,” Russell said. “I said ‘That’s crazy: They already have your name. All they’ll be doing is checking to see if you have your paperwork for three years.

“Yes, there’ll be costs involved. But this is also a way for legitimate businesses to have some teeth against those underhanded, lowball people who follow the rules. If they take away the fines, it’s more likely lowballing firms will do the work.”